92 Decision Citation: BVA 92-11584
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-23 650 ) DATE
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THE ISSUE
Whether the veteran is entitled to payment of disability
compensation from January 1, 1976, subject to the recoupment
of severance pay.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. L. Mason, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an July 1990 decision from the
Wichita, Kansas, Department of Veterans Affairs (VA)
Regional Office (RO). The veteran served on active duty in
the Armed Forces from September 1967 to December 1975. A
notice of disagreement was received on September 18, 1990.
A statement of the case was issued on November 5, 1990. A
substantive appeal was received on November 20, 1990. A
hearing was held before a hearing officer at the RO in
December 1990. A supplemental statement of the case was
issued on February 14, 1991. The case was received at the
Board on June 10, 1991, and docketed on June 14, 1991. The
veteran has been represented throughout his appeal by
Disabled American Veterans, to which the file was referred
in June 1991. That organization submitted an Informal
Hearing Presentation to the Board on September 13, 1991.
The appeal is now before the Board for further appellate
review.
REMAND
Upon reviewing the evidentiary record, the Board observes
that although the veteran was discharged from active duty on
December 31, 1975, due to a medical disability, according to
a letter from the United States Marine Corps in May 1989,
the veteran was placed on the Temporary Disability Retired
List until March 31, 1978. Further, it is noted that the
veteran was paid disability severance pay in the amount of
$11,971. It is unclear from the documentation of record
exactly when the veteran was paid the disability severance
pay, and if the veteran received any other type of pay from
the military, and if so, the date of such payment. The
Board believes that the RO should contact the United States
Marine Corps Finance Center and obtain this information.
Additionally, the Board observes that the RO in August 1976
granted service connection for the residuals of a back
injury, a postoperative pilonidal cyst, a shell fragment
wound scar to the chest, and multiple sebaceous cysts, and a
combined 20 percent evaluation was assigned, effective
January 1, 1976. The Board notes that according to the RO
the veteran did not again file a claim until 1988; however,
38 C.F.R. § 3.157(b)(1) indicates that the date of a
uniformed service examination which is the basis for
granting severance pay to a former member of the Armed
Forces on the Temporary Disability Retired List will be
accepted as the date of the receipt of an informal claim.
However, neither the examination nor the date of the
examination which is the basis for granting severance pay is
of record. The Board believes that the RO should contact
the United States Marine Corps and request a copy of the
examination given to the veteran at the time he was released
from the Temporary Disability Retired List.
Under the circumstances of this case, the Board believes
that this appeal should be REMANDED for further
development:
1. The RO should contact the United
States Marine Corps and request a
copy(ies) of the veteran's medical
examination(s) used as the basis for
granting severance pay at the time the
veteran was on the Temporary Disability
Retired List. Once such documentation is
received, it should be associated with
the claims folder.
2. The RO should contact the United
States Marine Corps Finance Center and
request clarification of the exact date
of payment of the veteran's severance
pay, and clarification of whether the
veteran received any other type of pay in
relation to his discharge from active
duty, and if so the specific dates of
such payment. Documentation as to the
types of pay and the dates such payments
were made should be obtained and
associated with the claims folder.
3. The RO again should consider the
veteran's claim along with all the
relevant evidence and applicable law and
regulations, specifically 38 C.F.R.
§ 3.157(b)(1).
Following completion of the above action, if the
determination remains adverse to the veteran, he and his
representative should be provided with a supplemental
statement of the case containing a recitation of the
pertinent evidence, law and regulations and reasons for
decision. They should then be afforded the opportunity to
respond to the supplemental statement of the case prior to
the return of the appeal to the Board for further appellate
review.
The purpose of this REMAND is to obtain clarifying
information and afford due process of law to the veteran.
The Board intimates no final disposition by this action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
E. M. KRENZER
C. D. ROMO
38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1991), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.